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tv   Washington This Week  CSPAN  August 3, 2014 1:28am-3:11am EDT

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noted in the report. one thing we are doing at the department of labor is to ensure that people with disabilities have access to the work waste. -- workplace. we are in the middle of increasing the number of people with disabilities in the workplace. we're working closely with employers and with other key stakeholders. we work closely with a friend and colleague on strategies to increase the number of workers with disabilities who can punch their ticket again to the work list and the middle class. people with disabilities want nothing more than the dignity of work, live in an economic mainstream, and the feeling of contributed to their communities. they want to pay taxes and that is why we are working hard to ensure that we help them do so. our skills and training agenda -- the agenda is could be helpful in strengthening the social security and medicare trust fund because a strong
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economy means a strong social security and medicare system. limits are to my colleague and friend -- and let me turn to my colleague and friend. >> thank you. the social security and medicare programs are crucially important for the millions of americans received benefits. roughly 95% of americans are receiving or expect to receive benefits of the program in the future. we are responsible for overseeing and annually reporting on the status of the two programs. the trust fund reserves are projected become depleted in 2033 unless changes are made. at that time, income will be sufficient to support a 77% of scheduled benefits. this year, the year provides is unchanged. lawmakers should ask him to adjust his imbalance and
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gradually phase in changes. so give workers, employers, if an beneficiaries time to adjust. the long-range funding this year's report as represented by the deficits is slightly less favorable than those of by 2013. based on the interception, the deficit for the combine the social security fund increases from 2.72% of payroll to 2.80% of taxable payroll on this year's report. this change can be attributed to the change from 2013 to 2014 and changes in methods of assumption and starting data values. the disability insurance is projected to be depleted much sooner than the combined social
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security funds. this used reports says it will occur in 2016 and the absence of legislative changes. it would be sufficient to support 81% of scheduled benefits. the program is a vital part of this country safety net. it is not only of immediate importance for 11 million americans currently receiving benefits and depend on those needs every day, it protects all insurers will and working americans who need to rely this program to replace their income if they become disabled in the future. we owe these individuals a program that provides timely payments. thank you. >> i want to begin my remarks by
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saying thank you to all of the all of the staff, as well as the many dedicated staff of the offices of the chief actuary and the medicare. since i am the sole republican, i sometimes the library special responsible to the objectivity in what is produced. i want to thank secretary lose staff are managing this process fairly and the common ground of four buried people. -- the common ground of people. you. say thank what seems to has become a tradition -- i will speak about the social security report and the medicare report. wasshort summary is that
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said earlier, the long-term picture of this sure looks very similar to last year's trip or peer to the short-term picture has grown more urgent it under armour current projections, we are two years from the completion of the reserves the social security disability insurance trust fund. in the fourth quarter of 2016. completion, -- it is to the social security disability program faces distinct policy challenges. it is important to understand the financial challenges. -- there is a survivor's trust fund that is just a severe. there are two sides. the old-age and survivors insurance fund faces the longest shortfall. the long-range shortfall is equal to 2.55% of the program's tax base and workers actual rages whereas an disability side into 0.33%. the shortfall in the
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hypothetical combines trust fund is to 180% of taxable payroll or -- 2.88% of taxable payroll. the primaries and we are heading into deletion point first is the baby boomers go through the years of disability before they move on to retirement. many are in the process of converting. shifting these financial pressures to the ofai. the bipartisan compromise is sustained. the trust funds is now substantially larger, even regulatory to the once said a than the ones were close and
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-- more severe measures would be required to achieve similar success today in the longer the legislative action continues to -- close thethe show for in a way that preserves the financing structure. , and increaseelay the relative sacrifice required of each one. to illuminate this comic couple of examples. by 2033, the required payroll tax scheduled for system security benefits will be an increase of over one third of workers. on the other hand, if we reduce benefits across the board and avoid to reduce benefits, the reductions will be 23%. that applies to the with that are already on the benefit rule.
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the moral of this illustration is that a solution is a solution that is less likely to occur in a lease from the perspective of one that preserves social security's unnatural structure. it's method may not be perfect, but it has been in the main accepted by americans on a bipartisan basis for several decades. as we've all seen in many other instances, it is not a trivial exercise. it is sustainable means of social security. we slightly lowered the price presumptions. we had a slight downward reduction in the ratio of the total wagers. thus slightly worsens a picture. revenues for social security are a function of tax earnings were
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as benefits grow in proportion to growth in the total average each index. these are very small. they total 0.1%. this along with the 0.06% increase that was by the passing year accounts for the increase of last year's estimate of 0.27% of payroll to a deficit of 2.78%. to summarize, our long-term qualitativelyt changed. we are rapidly running out of time for the disability trust -- before disability trust funds run out. because disability and old-age survivalist ernst is related to the basic benefit structure, it is being strained by similar factors, lawmakers will act strongly for social security as a whole. with that, i turn it over to my colleague. >> good afternoon. thank you for your remarks. i found that a trend this buzzer
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to work with him over the last four years. i want to extend my appreciation to secretary lew for their contributions to this process. also, to the staffs that have are presented of them and the deliberations throughout the course of the year. the stats have shown incredible dedication, and commitment, expertise, as we have put this together. and the actuaries and their staff to of been incredibly constructive. a primaries possibility is to ensure public analyses and objectives that the use data available. they employ the most important assumptions.
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as chuck indicated, both he and i agreed that we can provide such assurance of the public without hesitation. once again, we feel we've participated in an open discussion of numerous issues that have to be dealt what each year as these reports are put together. let me say a few words about content of these reports. the bottom line message -- it differs little from those of recent reports. i add my voice. as emphasized, both of these vitally important programs, unsustainable over the long run and require legislative intervention to correct. the sooner the policymakers
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address these challenges, the challenges will be less if we help the economy as a whole. the sooner lawmakers act, the broader will be the year brea -- their array of policy options that they can consider and the greater the opportunity will be to make solutions that balance of government. has focused on social security. i will say a few words about the medicare report. one of them being quite wonky. the first is that unlike previous reports -- medicare part b cost projections in this year's report are not current law projections. they don't assume there will be a sharp decline in the fee payment schedule rates is called for by the sustainable growth rate mechanism which lawmakers have waived every year since 2003. the projected baseline which is the monarch or we have given to prevalent possessions shown in
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the report assumes that lawmakers will increase position payment by 6/10 of a percent a year when the current sgr fix runs out in march 2015 and the adjustment will continue through 2013. the increase is the average increase that lawmakers have provided over the decade that precedes march 2015 when they have waived the rules. this baseline change should make the cost projections and bit more useful than they have been in the past when they reflected the effects of sharper junctions of payments. the current law projections along with adjustments of the alternative presumptions in which the world is more pessimistic are still presented in a report.
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they are contrasted with the baseline of various places and then explained in more detail in appendix c of the report. the second mentioned that i blithely, don is -- that i would like to comment on is what lawmakers should have on the improvement of medicare is an situation. it is very real. the cost have been essentially unchanged for two years and have grown very slowly over the past or years. it has been explained. it was in the previous years. the estimates that the 75 year deficit have declined from 1.35% taxable payroll in 2012 to 1.1 1% of payroll in 2013 and now down to .380% payroll.
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this report projects the trust fund will be depleted in 2030, four years later than was projected. lashes report moved to the trust fund the place and date from 20 24 to 2026. -- 2024 to 2026. some might be tempted to conclude these good new trends that medicare will be healing that would not be prudent conclusion to reach. sectors remain highly uncertain. it could bounce around a good yield from year to year. the completion date has moved over the course of the last three reports. it is worth remembering between
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2010 and 2011 reports it moved in the other direction. ago, the projection was 11 years closer to 2012 -- 2002 and 2004 reports. data offers the productions that are made and subject to revision and going forward, the trust fund balances and part b spending are affected by the strength of the economy, new legislation, pathological and changes in the efficiency of which health care provide services and to the non-elderly, non-disabled population. each of these introduces uncertainty into the estimate. uncertainty that grows with further projection.
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our latest projections indicate that medicare spending will grow faster than workers and retirees incomes or gdp. concur with the message that notwithstanding the very encouraging spirits the past three years, or the legislation will be needed to address the substantial financial shortfalls faced by part a and the growing burden on the rising part b costs on taxpayer beneficiaries. the sooner law makers face that, the better. thank you. >> thank you. i want to thank all my colleagues and trustees further
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work to put this together and for our staffs for supporting the effort. i think we are going to take of you questions from all of you. >> if you can wait for the microphone then state for you and state your name. the first question -- >> secretary lew, a couple of democrats proposed changes to the payroll tax allocation to send more money to the disability trust fund. you don't have to do -- do you support that? >> let me say that in the past when we had a situation like this, the measures taken in the short term at least to deal with it was to do a reallocation of the payroll tax rate to support the visibility fund. i think he be look from now
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until 2016, there was probably no other alternative vector produces the desired results between now and then. i think it is going to be important for there to be legislation that doesn't reallocate the payroll tax -- that does reallocate the payroll tax. as we go to the process of looking more broadly at the reforms needed in osdi to do with the longer-term questions -- i want to underscore we have in our budget and number of provisions that will improve the program integrity in the disability program. we're going to continue to push that forward. >> any other questions?
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thank you. >> my question is with the secretary. and report attributes the improvement in the hii trust fund to two factors -- one, i variety of features. a slowdown in the slowdown of the hospitals expenditures. can you talk about the relative proportions of each and explain the improvement and the trust fund? what specifically is making any difference? thank you. >> i think what we see and we talked about which is one of the biggest piece of news is what is happening in a medic or side. it is a number of things coming together. in terms of the direct attribution in percentage terms when gdp numbers are coming out,
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the question at this point is our ability to get to the level of what you are asking about. it is something that is very difficult to do. we have not done that. what we do know when what the root -- and what the reflecting shows -- what we believe is the changes that have occurred in terms of the affordable care act , in terms of some of the changes that were made in terms of the way we would implement things in terms of how they are implementing the law whether that is the medicare changes or other changes that have occurred. what everyone is we do need to focus on longer-term fixes. we are focused on social security because right in front of us we cannot ignore that we need to do a couple things to think about how to do the long-term resolution and of the same time continue the implementation of changes that have been put in place and consider other changes that i think many of you already know that and the current budget
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there are additional changes that would produce additional aid. >> other questions? >> i would like to ask the public trustees what is behind the ongoing slowdown in health care costs and how long do you think that will continue? >> lots of things are behind the slowdown. as you know, better than most, there is an active debate going on among experts in this area. how much of his it is due to the weak economy, how much is it due to the legislative changes like the affordable care act. in how much is it due to pressures that are being exerted both
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under private sector and public sector. a will lowered utilization and growth of intensity. i think we are probably many and for himi think we are probably many years away from being able to allocate these various factors a within any kind of precision. the question also involves how long this will go on. if you look at the medicare issues, we have quite slow growth going out for the next couple of years. and, i think that is probably a safe assumption in respect to the private sector as well. the increase in the burden that is being placed on consumers outside of medicare derided dr. bull plans -- high
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and deductible plans, increased prescriptions, providers. it is dampening spending as well. so, i have no definitive answer for you but maybe chuck will. >> i think there are four points i will make. no one knows. there is an active debate that is going on. how much of it was changes in the health care sector. how much of it is to recent legislation. that is not a debate trustees will settle. the second point i will make is that you have to remember we are dealing with projections of the future. there was a great sensitivity of what we project in terms of trendlines going forward. the amount we are projecting and more favorable trends based on data received to date. overall, very little of that is
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a change projection for the future. the amount that a future has improved to date is relatively slighter. i am recalling correctly, we are looking at a trust fund ratio in the trust fund of 72 and set of 76. is a little better but not qualitatively better. we need to be a little bit cautious about inferring from a change of production. the reality is that much better. we are looking at a more favorable trend in project and i going forward. the third point is that i would not be too long up on the debate of hi trust fund insolvency. the hospital insurance trust
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fund is one piece of medicare. secondly, the trust fund is dimon summit hospital insurance which is never different from the hospital insurance. we have a relatively large buildup of combined trust funds. a rather precipitous. period of drawdowns in the 2020's and 2030's. we have a shallow balance to begin with. you can have a very slight nudge either favorably or unfavorably in mecca and cause that's a move by several years. that is the nature of the beast with hostile insurance, trust fund balances. we have had a year where it comes -- the last point that one has to remember that the trustees methodology has been assuming it's essential slowdown in the
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rate of national healthcare growth over the next 75 years. we have been assuming that. it is starting to occur but that doesn't mean that reality is going to be that much better than our projection methodology suggests. our projection methodology is perhaps being validated as somewhat realistic than we anticipated. a slowdown in national outerspace and growth. on top of that, we are assuming substantial savings from the affordable care act going forward. we are assuming the projection period is assuming. we hope the continues. we have to remember we have been assumed for a long time that this is going to play out in a more payroll direction going forward. -- more favorable direction going forward.
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>> and that concludes our press conference. we will take a 15 minute break. we will reconvene. >> next discussion about executive power in the constitution. then the weekly addresses with oregonnt obama and congressman. american artifacts on american history tv. our visit to the national security archives at torched on university reveals the classified documents. congress passed a resolution giving president johnson broad
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powers to wage war in southeast asia. american artifacts, sunday at 6 p.m. and 10 p.m. eastern. watch more american history next week. american history tv will be in prime time monday through friday at 8 p.m. eastern featuring events from watergate on its 40th anniversary. american history tv on c-span 3. >> the u.s. house of representatives voted along party lines to sue president obama over the implementation of the health care law. at a recent debate, the house could potentially win the case on the merits, the lack standing to bring the lawsuit in the first place. a harvard law professor says the house is unlikely to win. a cnn legal analyst moderated the discussion pretty was hosted by the aspen institute and is just over an hour. conversations,t we had justices kennedy and breyer come out.
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they did the introduction. ellen is serving as director of art and and the seas at the state department. since the format of tonight's debate is a no holds bar , we may have controversial subjects. i i should say a word about why i think the subject is so important. when our constitution was written, our founders were concerned about keeping the federal government small and avoiding anything resembling a monarchy that they had plotted against. congress was to reject the power of the executive and the courts would check the power of both and juries were to check the power of all three. today congress and the executive branch hardly resemble anything our founders could have imagined. congress has been incapable of
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passing any legislation or confirming presidential appointment, spends most of his time raising money or investigating the executive branch, and is thought to be doing a good job by about less than 10% of americans. the executive branch consists of hundreds of departments and agencies that run our country on a day-to-day basis. congress created an clearly .nterested to make policy members of congress are now claiming that the president is exceeding his constitutional do somey are trying to things around the edges with immigration and minimum wage and marriage and equality and climate change and filling in the vacancies on government positions that make our country run. the question before us this afternoon is whether the constitutional claims of abuse of executive power are exaggerated and whether we
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should be concerned about whoever sits in the white house running roughshod over the separation with a highly respected supreme court justice calling for some -- constitutional amendment to deal with the problems of gun control and redistricting, it is no longer heresy to suggest our constitution may need revision. to debate the issue, we are ogletreeo have charles who taught president obama everything he knows. estrada,ght, miguel won, ined and in part
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exceeded that obama his authority and making appointments to the national labor relations board. yorkoderator is a new staff writer in one of the country cost -- country's jeffrey publications, toobin. but the debate begin. [applause] >> thank you. hello everyone. speaker boehner says the house is going to sue the president. can the house sue the president? >> it depends on the claim.
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backup. [laughter] it very be a difficult lawsuit to frame because of a number of legal documents having to do with the competence of the courts. the house isk going to overcome a number of cases from the supreme court that hold congressmen and senators do not have the standing to bring claims in court. they are trying to get around that by having a vote in the house and saying this is not the usual case in which someone who lost out in the process is coming in. but it is really the institution. that raises a number of issues about the extent to which the institution can claim the type of legal injury the law recognizes.
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usually people who come into court are claiming you took my money, you took my child. that's what the law calls an injury in fact. that is usually what is needed. is thet contemplated nature of, you are failing to comply with the affordable care act. popularly known by those who love it as obamacare. it is not obvious how the areers of the current house injured by the president's failure to comply with the law. it is also likely at least some of them are people who are members of the public who are injured by these things and could sue. my view would be it is a challenging case for the house to bring, even if they do have a vote. a court to bet on upholding the standing of the house, i would not give them
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more than 50-50. >> what do you think? can the speaker, the house, sue the president? my answer is surprising. i would say yes. they have sued the president over and over again. i don't think they will be successful. i think he is attempting to make an important case. i think president obama is not afraid of it. he is suing me for what? doing his job. that is the debate for him -- between him and the congress. reality is the president has already been stung by the supreme court's wrist -- recent decision. they left a little window for him to do what he needs to do. i think everybody knows the president has been supporting this idea of executive power
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because he has been stopped by republicans for every single thing he wants to do. first term, we heard the senator say we are going to make him a one term president. he is wrong. i wish he could do better. there's a lot of things i would like to say -- see he has not done. whether hein to see uses executive power for a lot of other things. not just to disagree with the palace but because he has an enormous amount of power. are you saying the house will have standing? they will just lose on the merits? will still president have executive power. i'm not sure he is going be -- to be successful with congressman weiner. -- boehner.
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but people are saying let's get something done. somebody needs to do something. how can you not support anything for us in the last six years? >> i think there is always a very attractive claim by everybody who wants to do what he thinks is wise to say, the other side is not letting me. it to go back to 1789. the people who wrote the constitution said the government is best that governs the least. them,was some sense for because for laws to be changed and made, the assumption was there has to be consensus as to what we are doing. is lesshappening here the political -- there is a new -- do-nothing congress. everybody says that when
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congress does not go their way. is ayou effectively have country that on fundamental questions of policy is divided 50-50. as reflected in the white house and the congress. unless they can come to an agreement as to how to meet in the middle -- they keep insisting to have 99% of their thing is going to get done. that is in the system to review can't have change unless you come to an agreement. the minority was intended to have the ability to slow things down until there is consensus. >> let me talk about a specific. as the planned lawsuit is being the core claim is going to be the affordable care act says the employer mandate takes place and is supposed to
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kick in on a certain day. this administration delay the day. know how the republicans feel about obamacare. in thisaim is the food restaurant is terrible and the portions are too small. [laughter] point that the law says there is the state. the president changed it. how can you do that? >> i had the flipside of the reaction that professor ogletree had. it is difficult for the house to get standing. if they manage to get standing, they most likely would win if the court was to consider that money merit -- consider them on the merit.
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the president says, i will not do that. that is usually unlawful. things of that nature usually get set aside by the supreme court all the time. two months ago, the supreme court slapped down the epa where the statute said you should regulate if the polluter issues more than 100 tons per year. the agency says, that is not reasonable. the court said, you cannot do that. if the congress says you have to do it on these terms, you can't put it to the side. on your point as to whether this is terrible food and we want more of it -- the people should experience the laws of the country as passed by the representatives.
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bad effects or people don't like them, that is why we have congress. we can change them. but you can't simply say you past something in a rush and you are going to fix it on the fly by disregarding what the statute says. >> what about that? >> we have had debates in congress as long as we have had congress. on both sides of the aisle. as much as we think this is a we had to deal with the bill of rights. detection for women. whatpresident is doing others have tried to do. move the ball forward and say i'm going to do some things. some of the things he has proposed are good for america, even though people are opposed. i think because of his politics, because he he is a democrat.
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he is going to try to make sure things are going to happen. he is going to wait for the court, if they are going to overrule what he is doing. let's think about the affordable care act. this is not new. every time we have, up again, this has been important. room for 1993 -- remember 1993? they called it the larry care -- hillary car? e? >> whatever happened to her? >> she is running for population. she will be the first woman elected president. more than 50% of our population is women. there is no question people are enthusiastic and supportive. my colleague and friend, senator elizabeth war and, is also --
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warren, iselizabeth also a great democrat. someday she will be president. my secret candidate is somebody not on the ballot. billion person i had, the honor of teaching, -- brilliant person i had the honor of teaching, michelle obama. >> you heard it here first. what about the business -- there is a law that says you have to do this on such and such a date. he is delaying the law. is that ok? >> yes. >> why? >> he has the power of his executive our -- power to do what needs to be done. he is trying to make the affordable care act -- people
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call it obamacare, i call it obama cares. i think it will help the american people. there are a lot of people against it. the reality is even though people who are poor, rich, have a lot of problems with this president, he has tried to do a lot of things internationally and globally and nationally and locally. hopefully a lot of that will happen going forward. >> let's talk about recess appointments. did you want to say something? >> i don't mind going to a pep rally for the president. been toany recently -- any recently? >> the fact is, if there were a private person who were employed by an employer who was accused by the president of providing a mandate.
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somebody whor would be entitled to coverage except for the postponement, that person clearly can sue. he can say the president has delayed the obligation of my employer. he has standing and a bang up claim on the merit. you can't say, as the answer to hasything, the president executive power. yes, he does. is of the executive powers to make sure laws are faithfully executed. when congress says this has to he noe in a certain term, less than any other citizen has to comply. >> isn't very doctrine of law that says, as the supreme court said two years ago, affordable care act was affordable as a
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tax, the irs has the authority taxesay the imposition of at their discretion. obamacareelay in the employer mandate an exercise of that? >> two answers. first, no on the general point. the power to tax is the house of representatives. there's a statute that gives him gives some leeway to the administration. whether that covers the situation is an interesting issue. has thethe treasury power to issue needful regulations. the question is whether this was needed. is theher this enforcement of the act.
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i would think neither of those things is true. >> let's talk about recess appointments. relic of aonderful different time in american life. the recess appointment came in in the constitution in the course -- horse and buggy era. congress was out of session and they could not come back -- >> for eight months at a time. manye president had to do things including fill vacancies. they gave him this power. why would a president be using a recess appointment now? >> because the resistance from republicans to anything he is trying to do. it is something the people of the country want. the majority want some affordable care in one sense or another. even the polls -- people watch
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jimmy kimmel. i watch him and fox news. i get a lot of information from fox news. the thing about it, he did a survey. how many people would like the affordable care act? everybody was against it. how many people like obamacare? no way, we don't want it. job ofsident did a poor explaining what the affordable care act was. when it was going to be implemented, how much it will cost. it is something we have been trying to get for this country for a very long time. it is a costly and confiscated thing. but i think it is a necessary ople can make sure pe find somewhere to get medical care for their family. i think that is a salute to this person who was trying to do
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something against the strain of people were saying politically you cannot do it. >> let's talk about recess appointments. i have to say,- miguel and i are law school classmates. this is one of the great arguments i have ever heard by miguel in the supreme court. almost as great as his socks. what was the issue? >> let us back up. for thesetution has purposes two rules for how you go about naming federal officers. the general rule, this is what you do all of the time, it says you cannot appoint somebody to be an officer of the u.s. or a judge or a high-ranking
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government job unless you get the advice and consent of the senate. that can be difficult, i am here ce tell you, since i was on nominated by a president and filibustered seven times. but that is the system we have. if you don't get the senate to agree, you do not have an appointment. the next one says when the senate is in recess, you can appoint temporarily until the next session of congress. that is the exception. it is unusual to say you get to glass in caseeak of emergency part of the constitution when your reason under theit is not -- general rules, they are entitled to do that. if you don't get them to agree, you do not have an employee -- appointee.
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this may be viewed as obstruction by some. it is what the constitution says. you have to get the senate to agree. the president got frustrated because he could not get the nlb fully staffed. it is true that many of his appointees were not timely confirmed. but that wasn't really the case with his recess appointments. the folks had not even had their questionnaires into the senate. in forate was coming what the synod called a session every three days. what happened that the session was the senator in charge of the chamber that day, a member of the president's party, 40 seconds later they would level the senate out of session.
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nothing was done in these sessions. the president said you are effectively on recess. you are not confirming my nominees. name people. he was chance to -- challenged by a company. ira presented some people who -- i represented some people who were also challenging. i forget the exact number. i think 44 randomly selected members of the senate. republicans. the one on the d c circuit. the circuit said the appointments were unlawful because under the original understanding of the constitution, you could only appoint somebody if the vacancy
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had arisen in that recess. the only recess that counted was in between formal sessions of congress. narrowly, bymore made moreteve, i narrow arguments. i only argued the senate is not in recess. the court was unanimous. there was nobody who believed the president had this power. the two people he appointed did not vote for him. is an unlawful appointment. the districty -- disagreed with the d c circuit. it was not that the recess be kept out of the clause. it was not necessary that the last person to occupy the office
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had left during the same recess. that actually in many ways is a huge victory for executive power. allows for the income you and -- incumbent occupant. >> if the d c circuit had prevailed? i think it is safe to say the recess appointment power as a practical matter would have to spirit -- disappeared. it is not gone that presidents can use this, but they have to use it in narrower circumstance then president obama. >> what the court said was the senate has the keys to this power. they can choose to go. if they choose to stay by coming in for three days and having a 42nd session, is good enough -- 40 second session, that is
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enough. inthey think they are not recess, the president does not have this power. verary a question that may attending on whether the president's party is in power. republicansdent -- control the chamber, there will never be a recess. the democrats could in theory force a recess. this is probably more than you need to know. most lawyers have not heard of this part of the constitution. the senate has to come in every three days, because it cannot be away for longer without the consent of the house of representatives. a he senate wants to have
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recess and the house does not agree, the senate can vote for the recess and the president gets to adjourn houses of congress. which has never happened. >> it can happen. is a lot of people have not read the full constitution or what it says. the whole idea was a battle -- balance of power. they went the supreme court to decide those issues when there is a complex. very few cases actually make their way to the supreme court. they are trying to figure out what to do based on what is right for the people. i think all these little clauses are what any president has to look at. that is going to be very clear in terms of what a recess appointment can be. the question is what kind of recess appointments can you do and what kind of hoops you need to jump through. >> mcgill made a reference to
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something which is a big heart of the story. -- big part of the story. there are various ways of counting. in theibuster rule senate is you need 60 votes to break a filibuster. there are 55 democrats now. is the filibuster constitutional? >> i think it is. i think you make bad laws when you start to say, let me change the number now. because it is damaging to my side of the aisle. that is not the way to decide law. the majority can control -- we cannot do that. >> the filibuster is not in the constitution. >> the practice, and mcgill told you --miguel told
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>> i think the filibuster is absolutely institutional. >> -- constitutional. >> it makes clear the senate can discuss and debate and agree and disagree. they can decide who can be appointed. it is a series of appointments. >> the constitution says each house of congress shall be the judge of its own procedures. but -- source of constitutional authority for each house, they can have quorum rules. there's a case from the 19th century where the quorum rule actually applied was the presiding officer could send me sergeant of arms into a nose count of anybody on the ground. the supreme court said, we get to do that. that was one of the cases they
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cited insaneey even if the senate is coming in for 40 seconds, they get to do that. >> you both agree the filibuster is constitutional and necessary. has it been abused by the andblican or minority president obama's term? is that one reason why these fights have arisen? has there been an abuse of the filibuster? is that why he has made these recess appointments and other actions? >> the answer to your first question is yes. it has been abused. i don't think you can get rid of it. that would be contrary to what we believe as a productive government. even senator harry reid who reduced the number for confirmations to 62 less than that, that was part of the power
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he could use as a sinister. -- u.s. senator. it will be interesting to see what happens in 2016. that will have a big determination for what happens to our country. i think that it's going to be -- make a big difference. >> mcgill -- miguel? >> i take issue with the question. i don't think it makes sense to talk about abusing a procedural rule three if you accept that things cannot happen unless you have 60 votes, the point of the rule is to not have things happen unless you have the consensus of 60 people. it is almost anti-common sense to say a rule you can do --ething
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maybe it is basic literacy. >> you don't think -- do you agree with him? you think it has been abused? >> do i think it has been abused? no. >> moving along. a related question is whether defend laws has to that have been passed by congress. you have the justice department which says, we defend the laws on the books in a highly celebrated case. a law passed with overwhelming support in the house and senate signed by president clinton. marriage defending
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state -- >> the c-span audience will love that. >> he has already served his term. is it appropriate for the justice department as it did in this case to say, we will not defend the defense of marriage act? >> the answer is yes. is not this is a snap decision. eric holder has been an effective attorney general. his point is, i need to enforce the law and get opinions from people who are smart. he has a staff of lawyers. tell me what i should do. doma was an act that does not make sense from his point of
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view. that is why he got rid of it. he has been much more powerful in what he has been doing. the idea that people with non-violent crimes for drug offenses should be reduced sentences.-- in we should not take away the right of people to vote to read -- to vote. he is trying to do things that robert kennedy did and other attorney general's. they are saying the court is not acting, the people are not acting, these decisions have to be corrected. >> what is the law? how does he get to pick and choose? doma was not that an appropriate expression of the law. the thing about where we were,
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if we were to ask people 40 years ago, can we have gay marriage? people would say, are you crazy? can blacks vote 60 years ago, no. these things were a clear sense about what you could and could not do. at some point the attorney general who has two of -- has to enforce the law and decide what manyrrect -- he is one of attorney general's where the legislative body held him in contempt. he is trying to enforce the law as best he can. giving these circumstances he has. he is understanding that america is changing. a different population than it was before. form andfferent interest. guel, what about
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that? >> its deal with the general question. the constitution sets forth the oath that the president has to take. the oath he has to take his support and defend the solution. if athe constitution president believes a law is not constitutional, he has to comply with his oath and not defended the law. when he comes to that conclusion, the has to notify congress. inther that construct works this specific context is a little bit of a harder question. presidents take very seriously the notion that they are relying on their own
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independent conclusion as to the constitutionality of a law when they refuse to defend it. therefore the justice department, for decades, has taken the view that even if the incumbent executive does not agree with the statute, they will defend it so long as the justice department can think of arguments that will support it. examples isamous the first president bush did not like the cable act of 1992 when the cable companies to carry networks. it was not to be a violation of the first amendment -- it was thought to be a violation of the first amendment. all similarly it was -- ultimately it was fought in the
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supreme court and upheld. where themany cases president comes to the conclusion he has doubts about the constitutionality. he has policy differences with the statute. in those cases, the rule has been you defend it if you can think of arguments a court would accept. you owe that to the legislative ranch. that one is unusual. it would be difficult to say at the time that the administration could think of no would -- arguments accepted by the supreme court that would result in the statute being upheld. it is sort of in a relevant question now. because theot, administration declined to defend it or the president was right along, the supreme court not that it was
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constitutional by a vote of 5-4. that could be because the president declined to defend it or he was right on the merits. it is difficult to know. >> let me ask you a general question. argument that is going on now is present obama -- president obama has been unusually aggressive in the use of presidential power, whether in his executive power to in inect impose the dream act, terms of immigration. offering waivers for no child kind. that is related to global warming in the epa. has he been more aggressive in the use of executive power than other recent presidents? is this merely be
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span of his political adversaries? >> it's not spend. -- spin. he has had to face a congress that would not support things he thought was of interest. he has used in the act more than he should've, i think. but a president has to do something. you can't sit there and nod your head because congress has not done anything. people need jobs, education, housing. all these things. they need a president to do things the legislature has decided not to do. he has been good about doing those things, even though you -- there are areas i think where he has crossed the line. >> where? >> i'm not going to tell you in front of the television audience. miguel, where does he stand
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in the hierarchy of use of presidential power? >> the truth is all presidents try to be very muscular about the use of executive power. this is why talking about issues by executive power in the abstract is best done by extrapolating from the incumbent all the people that are saying, today, the incumbent is trying to do his job. when bush was having the imperial presidency -- if you go back in history, fdr had to do lend lease. which was not lawful because he could not get around congress. presidents have always tried to their executive power. the question is not whether we like the incumbents. observewe would like to
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the structural protections of because solution that say the executive, whether you like him or did not vote for him, has the power to do certain things. i don't think he is unusual. i think he is as pushy as other presidents have been. he is if anything a little bit maladroit about picking legal fights. he picks those that are most likely to get shut down by the courts. inflexibleout a deadline on the theory, because i can, that is not likely to fly. so he is doing but presents -- what presidents always do but somewhat less adroitly. >> who has a question? right there in the middle. are we doing microphones?
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i picked someone in the middle to make it most difficult. can you pass the microphone? who is that? judge? >> judges not going to touch this. and then we will get to this gentleman next. this woman here first. >> one thing you said about the justice department and eric holder, you thought he was of --ive, and in the case that was one of the first times i saw president obama say he had heard about it from watching television. >> what is the question? >> the fast and furious. >> was the question? >> i want to know why the
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justice department did not investigate that. next question was about the internal revenue service and lois lerner. the justice department investigating that. >> ok. thoughts? people -- fast and furious is one of the wonderful things that could only happen in the government where somebody thinks by givingake inroads guns to drug traffickers in mexico. does dumbgovernment things all the time. this is why the framers of the constitution wanted very little of this. the president came to be aware of this.
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there was a question about whether the attorney general had been aware of it. his in the congress viewed answers to that question is not being adequately responsible or his having not adequately explain himself. that is why the house held him in contempt. i don't want to single out the attorney general. again, when a house of congress is controlled by the other party, there is a lot of close inquisition into the practices of the administration. i think this one was so remarkably dumb that it did deserve an investigation. other people may disagree. all give you lois lerner -- i will give you lois lerner. involved the use of the irs against political enemies. that is the accusation. >> this always happens and is
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never good. it is a serious problem that all of us face when you are investigated not because you have done it crime but just because they have access to your information. as far as fast and furious goes, that was a problematic decision by eric holder as well. i would not have authorized.it . i understand what he thought he was doing. it was a great idea that went bad. it is almost as bad as the first thing he said the first week he was attorney general. he said americans are cowards when it comes to discussing issues of race. president obama said, wait, don't say anything without my approval. eric will still say what he thinks he has learned and what needs to be done.
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a lot of interesting things have happened. people focus on the bad things he has done. i think his attorney general has done a lot for this country in the last x years. -- six years. i think he will go down in history as somebody who pushed the envelope to make sure justice applied to every single person in america. not just those who are wealthy or employed. those who are well-known. some of the poorer people in the community. >> sir. >> my question, back to the filibuster that you spent considerable time discussing. at one time, it required 66. then it dropped to 60. we know majority rule is important. major laws have been passed by one vote. in your opinion, would it be helpful if the senate would drop
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it from 60 to 55? you would still have a majority and the power to stop things. it might speed things up. did drop the 50 fourrules from 60 to lower court judges and president's executive appointments. that has led to a lot of confirmations in the past several months including several to important courts of appeal. what you think, miguel? the so-called nuclear option. >> these questions are up to the senate. this is how they think they can do business as a body. i don't think one is mrs. early better than the others. better thanarily the others. businesse cannot do
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unless it does business on consensus. trying to force change without at least help or the acquisitions -- acquiescence of the minority is a bad idea. but if they come to a consensus, that is fine. >> i think it definitely has to be 50 were more. -- or more. i get reduction -- worried about the reduction to the low 50's. it will change when different people are in the senate. i think that is very problematic. >> in the back. >> we return to the affordable care act and the ability of the house to sue. the point that it is a tax.
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i want to ask a question about two supreme court citizens -- decisions. is lady decided that the -- called chevron. directlynless it violates the words of the statute, as long as it is reasonable, that is fine. two years ago, the spring court decided -- the supreme court decided a tax case you mean the ministry said the ability, the treasury department and irs, to write whatever rules they want to write unless it clearly violates the words of the statute. -- affordable care act has >> what is your question. >> whether or not based on the authority given to the administration, to write isdance and interpretation,
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there any way the house can win that suit? >> this actually goes to the merits if you go back to the standing question. the answer to that is yes. the key to understanding why the answer is yes is you have advocacy in your description of the chevron case. what it says is we do a two-step analysis. we ask what the statute speaks to, whether progress had an intent. if the answer is yes, the agency has no further role. just like the courts, they have to give effect to the words of congress. if there's an ambiguity with regard to the particular question of the issue, the agencies can exercise discretion under chevron to fill the gaps. that is what the court calls it, is there.t
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stock and trade of federal agencies to claim there is always a beginning. -- ambiguity. federal agencies will find ambiguity in a no smoking sign. that is not how the courts going about -- go about doing it. if they go on the chevron issue in merits, by examining such of the -- some of the questions, then it is unlikely the administration could win. it is true as i said earlier there are other parts of the tax law that give discretion to the administration with respect to the enforcement of the tax laws. quibble whether declining to enforce the tax thes is actually
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enforcement. >> secretary. also former judge. >> one of the justifications you sometimes hear from the administration, and particularly true in the immigration decision to identify and categorize people who will not be deported, one of the arguments that is made is the president gets to have enforcement priorities so he can decide how he wants to allocate enforcement. i want to ask you this hypothetical question. let's say you have a conservative president who says we have taxes that are too high. he goes to congress and says i would like you to cut the top rate. maybe there is a filibuster.
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does the president have the right to use his enforcement power or discretion to say to the irs you cannot collect more than 10% owed when they file tax returns? our humanlegitimate for a president who says, i am trying to save the economy and congress is not cooperating? >> great. >> i would love to have that hypothetical in class. i think every student in my class conservative or democrat is i don'te reality it would work. >> i just wrote about ted cruz. he made a very similar point. he said somebody who's going to be a republican president -- these epa environmental rules
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that congress has passed our to toorony and -- tare draconian. i'm going to increase the amount of discharges in the water. >> one of the wonderful things about the hypothetical is it is only on the service designed to illustrate something that sounds really silly. is what thes a -- president has done here. recall that the consequences of not applying with the deadline is that you have to pay money into the treasury. what he has done is to say congress passed a law that says if you do not do such and such in the year 2014, you have to put money into the treasury. he has suspended the collection of the tax, which is what the court held it was. it is not that different from
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this case. it is a slight exaggeration of this case. >> a couple more questions? how about the gentleman like there with the blue shirt. is very hard to see with the light. well, anyway -- >> whoever has the mic, speak. >> is anyone in constitutional law tried to rank presidents on the abuse of power? whether there are more democrats or republicans? related that with lack of interpersonal skills? has anyone done that kind of research or work in the law profession? >> not to my knowledge. >> the answer is, it has been done to read a lot of the -- has been done. all of the people have been
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criticize were republicans. i think what they were doing was important, like abraham lincoln. but the whole idea is i have to do this because it will be important for our society. i also would say this. i said a thousand times, you cannot cite a president's significance after he or she -- there have been no she's but we hope there will be soon -- you have to figure out what impact it will have on the public. >> the guy in the blue shirt that i failed to recognize less time? you recognize me. she failed to give me the microphone. my question deals with legal reliance. business.citizen or in administration chooses not to enforce a certain set of laws.
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take actions that are in conflict with the laws on the books. believing is not an issue because the administration is not forcing them. what would be my legal exposure in this race and that chooses to enforce the laws on the books retroactively -- successor administration that chooses to enforce the laws on the books retroactively? >> tough question. >> it is not that tough. in the civil context, when you if by theaid taxes, time the nixon -- the next in mis-direction comes in, if they are with in the statute of limitations, then you are done. you have to pay the taxes. with respect to any other type of enforcement action, especially criminal prosecution,
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if you have failed to do something in reliance on official advice, that tends to negate the state of mind necessary for the liability. criminal liability. you would likely get an acquittal on the theory you lack the state of mind necessary to violate the law. in good faith, you said you were not doing it. that is usually not a defense to the payment of money in texas. >> -- in taxes. lawyer.re good somebody over here. isn't it true that even if congress were able to obtain a judgment against the president, they would not be able to
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enforce it because they would have to go to the executive branch for that enforcement? in the executive branch would refuse to enforce that, in which case they could get another judgment against him which he would refuse to enforce? isn't the only real check against a president who fails to uphold the law the impeachment power? isn't that where it is supposed to be? >> two answers. it is an excellent question and it really does highlight any dramatic way -- in a dramatic way why courts are reluctant to get into abstract fights between branches of government. that is why it is going to be chelan gene for the speaker to convince the court they have standing -- be challenging for the speaker to convince the court they have standing. case, you had a
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question of standing because the evisceration had not -- question was whether any number of people from congress could. justicescalia joined thomas. he filed a dissent where he made that oinked. -- point. what would happen is the houses of congress would be required to exercise the weapons in their arsenal. give the president money. the west highs the of each vent -- go as high as the impeachment. are illustrates why courts the houseso find -- of congress will have to resort to weapons they had all along. >> u2 have been surprising in your willingness to consider these lawsuits. let me conclude. we are over time.
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issue that walter jones raised yesterday. that the house of representatives can sue the president of the united states, can you envision it a scenario where the you make a reference to the hearings that happened yesterday. you do conclude that one house can sue the president, you would have to envision circumstances when the president would then sue in his official capacity to have towards congress. again, i am not trying to project the merits of the lawsuit that has been filed. everybody understands that the onsident -- i think, people my side of the aisle believe the merits are very easy because
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january 1, 2014, there was some ambiguity. but, the fact is, people who are driven to consider a lawsuit by understandon fully these pieces can be very challenging to bring to court. >> what about the issue of the scenario suing congress? >> i think it would be unwise. it would be problematic. we would be in a very terrible state as a country to have the president suing congress. there was a good reason for it but, that means we lost all -- when it comes to treating people equally. i can tell you this i have no doubt in my mind that the president decided to sue whoever lawyers like we
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have in his final -- [laughter] >> speaking of that -- it depends on who the client is. >> ok. >> please join me in thanking them. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] >> monday night on the communicators, three members of congress talk about their technology legislation. >> i believe in an open internet. without government intervention
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-- and look where the internet has come or what is going in the future. it is in the private sector. >> why would that not them exposed to tens of thousands of people? --think is blackout role is the fcc took the first rule in the end of the last year. we believe it will follow suit. >> they would try to address concerns over retransmission consent, basically giving people a level footing to be able to negotiate with broadcast and being able to negotiate with the providers and the people who were trying to deliver that's media to the consumer. they want to be available playing field when it comes to those negotiations. collection the republican negotiators -- >> the republican representatives, monday night at
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eight eastern on the communicators on c-span2. over 35 years, c-span brings public up their offense from washington directly to you putting you in the room of congressional hearings, white house event, and conferences, and offering complete gavel-to-gavel coverage of the u.s. house as a service. we are c-span, created by the t-bill -- the cable tv industry and brought to you as a public service by your local cable or catalan -- or satellite provider. like us on facebook or follow us on twitter. >> president obama discussed the economy and economic opportunities for americans. representative greg walden who chairs the national republican congressional committee gave the republican address. he talked about the republican agenda and tension republican house candidates running around the country. >> hi, everybody. my top priority as president is
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doing everything i can to create more jobs and more opportunities for hardworking families to get ahead. on friday, we learned that our economy created over 200,000 new jobs in july. that's on top of about 300,000 new jobs in june. we're now in a six-month streak with at least 200,000 new jobs each month. that hasn't happened since 1997. all told, our businesses have created 9.9 million jobs over the past 53 months. that's the longest streak of private-sector job creation in our history. because of you -- because of your hard work and determination -- america has recovered faster and come farther than almost any other advanced country on earth. the economy is clearly getting stronger. things are clearly getting better. and the decisions we make now can keep things moving in that direction. that's what's at stake right now. making sure our economy works for every working american. making sure that people who work hard can get ahead.
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that's why i've been pushing for common-sense ideas like rebuilding our infrastructure in a way that supports millions of good jobs and helps our businesses compete. raising the minimum wage. making it easier for working folks to pay off their student loans. that's why i've been pushing for fair pay and paid leave. these policies have two things in common. all of them would help working families feel more stable and secure. and all of them have been blocked or ignored by republicans in congress. that's why my administration keeps taking what actions we can on our own to help working families -- because congress is doing so little for working families. house republicans actually got together this week and voted to sue me for taking actions on my own. and then they left town for the month without settling a bunch of unfinished business that matters to working families across america. the bottom line is this -- we've come a long way these past five and a half years. our challenges are nowhere near
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as daunting as they were back then. but imagine how much farther along our economy would be -- how much stronger our country would be -- if congress would do its job. i'll never stop trying to work with both parties to get things moving faster for the middle class. and i could use your help. if you see your member of congress around home this month, tell him or her what's on your mind. ask them why they haven't passed bills to raise the minimum wage or help with student loans or enact fair pay for women. and when they return from vacation next month, instead of trying to pass partisan bills on party lines, hopefully we can come together with the sense of common purpose that you expect. and in the meantime, i will never stop doing whatever i can, whenever i can, not only to make sure that our economy succeeds, but that people like you succeed. thanks and have a great weekend. >> no matter where you stand on the issues, this much is clear -- something has gone terribly wrong in washington. and americans have good reason
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to be fed up. for nearly six years now, we've had an administration that trusts government more than you, that spends rather than saves, that believes change comes from desks in washington and not kitchen counters like this one. republicans have sought to do things differently. we've focused on solutions to rein in big government, and help grow our economy. the house has passed more than 40 jobs bills, but the president and his party refuse to give them a hearing. especially when we have an economy leaving people behind, a debt bigger than the size of our economy, a humanitarian crisis at our southern border, the irs targeting americans for their political beliefs, the rolling disaster that is obamacare and the president denies his failures instead of learning from them. he's disengaged when he should be leading. the president is so unwilling to challenge or even manage the big bureaucracies that our government cannot provide basic services to our veterans. these are the problems he
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promised to solve, but instead he's become a part of them. we all hope things will get better -- but in 94 days, we get to do more than just hope. we have the chance to deliver the accountability that cannot come soon enough. it's an opportunity -- and an obligation -- that we take seriously. as representative of oregon's second district, i hear from folks every day who are about at the end of their rope. and as our campaign chairman, i can tell you our candidates for the house are people just as frustrated as you are; they are leaders who are ready to serve. in arizona, we have martha mcsally, a retired air force colonel and the first female fighter pilot to fly in combat. she'll fight for women in congress -- just like she did in the uniform. in texas, will hurd is a former cia agent and successful businessman whose district is seeing first-hand the consequences of president's failure to secure the american border. up in minnesota, torrey westrom is talking to minnesota families
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and farmers about the anti-energy policies and taxes that are making it harder for them to get by. and in florida, there's carlos curbelo, a son of cuban exiles, a miami-dade county school board member, and a fresh voice washington sorely needs. these are just some of our great candidates, and i invite you to visit nrcc.org to learn more about them. because this is one of those moments when americans can seize the initiative for ourselves. yes, this election will be about jobs. it will be about our economy. and it will absolutely be about obamacare. but it will also be about holding washington accountable. this november, americans can reject the complacency and the incompetence, and begin to restore a government that works for us and not against us. we're all in this together, and if we pull together, we can set on our nation on a hopeful, more prosperous course. with that, i thank you for listening.

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